Brian Dalton v. Select PEO, Inc./ELS HR Solutions and Heimburger Construction Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-088377

Employee: Brian Dalton

Employers: 1) Select PEO, Inc./ELS HR Solutions

2) Heimburger Construction

Insurers: 1) Providence Property and Casualty

2) Continental Western Insurance

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 8, 2013. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued March 8, 2013, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 19^{\text {th }}$ day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Brian Dalton

Injury No. 08-088377

Dependents: N/A

Employer: Select PEO Inc. /ELS HR Solutions, And Heimburger Construction Inc.

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Providence Property and Casualty for Select PEO Inc./ELS HR Solutions, and Continental Western Insurance for Heimburger Construction Inc.

Hearing Date: $\quad 12 / 4 / 12$

Checked by: MEH

1. Are any benefits awarded herein? YES
2. Was the injury or occupational disease compensable under Chapter 287? YES
3. Was there an accident or incident of occupational disease under the Law? YES
4. Date of accident or onset of occupational disease: $8 / 27 / 08$
5. State location where accident occurred or occupational disease was contracted: TEXAS COUNTY, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? YES
7. Did employer receive proper notice? YES
8. Did accident or occupational disease arise out of and in the course of the employment? YES
9. Was claim for compensation filed within time required by Law? YES
10. Was employer insured by above insurer? YES
11. Describe work employee was doing and how accident occurred or occupational disease contracted: WHILE LIFTING A LARGE PIECE OF SHEET METAL IT HIT A PIPE AND SUDDENLY JERKED HIS RIGHT ARM BACKWARDS BEHIND HIS HEAD, INJURING HIS RIGHT SHOULDER
12. Did accident or occupational disease cause death? NO Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: RIGHT UPPER EXTREMITY
14. Nature and extent of any permanent disability: 75 %
15. Compensation paid to-date for temporary disability: UNKNOWN
16. Value necessary medical aid paid to date by employer/insurer? UNKNOWN

Employee: Brian Dalton Injury No. 08-088377

1. Value necessary medical aid not furnished by employer/insurer? $\ 269.60
2. Employee's average weekly wages: $\ 1,131.94
3. Weekly compensation rate: $\$ 754.63 / \ 404.66
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: $\ 269.80

0 weeks of temporary total disability (or temporary partial disability)

174 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A, for Claimant's lifetime

FUTURE MEDICAL TREATMENT

1. Second Injury Fund liability: Yes X No Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund:

weekly differential $\ 349.97 payable by SIF for 174 weeks, beginning $1 / 27 / 10

and, \ 754.63 thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded: FUTURE MEDICAL TREATMENT

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

KENNETH SEUFERT

Employee: Brian Dalton

Injury No. 08-088377

Dependents: N/A

Employer: Select PEO Inc./ELS HR Solutions, and Heimburger Construction Inc.

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Providence Property and Casualty for Select PEO Inc./ELS HR Solutions, and Continental Western Insurance for Heimburger Construction Inc.

Hearing Date: $\quad 12 / 4 / 12$

Checked by: MEH

The parties appeared before the undersigned administrative law judge on December 4, 2012, for a final hearing. The claimant appeared in person represented by Kenneth Seufert. The employer and insurer Heimburger Construction Inc. appeared represented by Mark Kornblum and Sarah Reichert. The record was left open until December 18, 2012, for the parties to provide the amount of benefits paid to date, if available. The Second Injury Fund appeared represented by Cara Harris. Memorandums of law were filed by January 18, 2013.

The parties stipulated to the following facts: On or about August 27, 2008, Select PEO Inc./ELS HR Solutions, and Heimburger Construction Inc. were employers operating subject to the Missouri Workers' Compensation Law. The employer Select PEO Inc./ELS HR Solutions' liability was fully insured by Providence Property and Casualty Insurance and Heimburger Construction Inc.'s liability was fully insured by Continental Western Insurance Company. On the alleged injury date of August 27, 2008, Brian Dalton was an employee of the employers. The claimant was working subject to the Missouri Workers' Compensation Law. On or about August 28, 2008, the claimant sustained an accident which arose out of and in the course and scope of employment. The accident occurred in Texas County, Missouri. The claimant notified the

employer of his injury as required by Section 287.420 RSMo. The claimant's claim for compensation was filed within the time prescribed by Section 287.430 RSMo. At the time of the alleged accident, the claimant's average weekly wage was $\ 1,131.94, which is sufficient to allow a compensation rate of $\ 754.63 for temporary total disability compensation, and a compensation rate of $\ 404.66 for permanent partial disability compensation. Temporary disability benefits have been paid to the claimant. The employer and insurer have paid medical benefits. The amount of temporary total disability paid and the amount of medical benefits paid is unknown. The parties agree no temporary disability benefits are due. The attorney fee being sought is 25 %. Heimburger Construction Inc. and Continental Western Insurance Company agree to be liable and pay any benefits awarded to the claimant from the employer and insurer. Continental Western Insurance Company reserves the right to pursue reimbursement from Select PEO Inc./ELS HR Solutions. The parties also agree that the claimant reached maximum medical improvement on January 26, 2010. They agree no temporary total disability benefits are owed.

Objections contained in Exhibit B-3 pages 27-31 are ruled on: All objections to leading questions contained in pages 27-31 are sustained. The answers to these questions will not be considered. The answers to non objected questions on these pages will be considered.

Objections contained in Exhibit B-3 pages 51 - 54 are ruled on: All objections to leading questions contained in pages 51 - 54 are sustained. The answers to these questions will not be considered. The answers to non objected questions on these pages will be considered.

ISSUES:

1. Whether the employer is obligated to pay past medical expenses.
2. Whether the claimant has sustained injuries that will require future medical care in order to cure and relieve the claimant of the effects of the injuries.
3. The nature and extent of permanent disabilities.

1. The liability of the Second Injury Fund for permanent total disability or enhanced permanent partial disability.

The claimant is 45 years old. He lives with his wife in Ironton, Missouri. He graduated from high school in 1985. He can read and write. He has not formal computer skills. After high school he has had no other formal training.

After high school he worked for Ceco Building Manufacturing. This company erected metal buildings. He performed manual labor and no supervisory duties. Next, from 1998 to 2005, he worked for HES Contracting, a general contractor also erecting metal buildings. He performed concrete, framing, general construction, and was eventually promoted to a supervisory role as a foreman. In 2005 he went to work for Heimburger Construction Inc., the employer, again performing general labor as an ironworker.

The claimant explained that his checks were issued by Select PEO Inc./ELS HR Solutions but Bob Heimburger, as owner of Heimburger Construction Inc., controlled the work and gave directions to the employee.

When working for Heimburger Construction Inc., claimant was involved in framed steel buildings and sheeted them with metal. He described how the frame of the building would be placed with a crane, tied together, and then squared up. After it was framed and squared it would be sheeted with sheet metal.

Prior to claimant's work injury he had testicular cancer in 1991 from which he fully recovered. He had also had some ulcers which had fully recovered. On June 20, 2006, he was descending stairs in his home when he fell approximately 7 feet landing on his right foot. He went to the Mineral Area Regional Medical Center in Farmington, Missouri. X-rays were performed which showed a fractured calcaneus of the right foot. Dr. Robert Duddy

recommended the claimant to schedule an open reduction internal fixation of the right calcaneus to surgically repair the fracture. Because the claimant did not have insurance he could not afford the surgery and opted for conservative treatment. On July 7, 2006, his right foot and ankle were casted instead. He was prescribed medication and exercises and was directed to not weight bear on the foot. He saw Dr. Richard Hollocher, an orthopedic surgeon, on August 29, 2006. Dr. Hollocher put him in a boot, prescribed medication and directed him to avoid weight bearing. On October 10, 2006, claimant saw Dr. Hollocher. Claimant was continuing to take medication and his right foot and ankle were swollen, sore and painful to stand on. Dr. Hollocher recommended surgery but the claimant declined because he could not afford it. The claimant had not worked since he fell and injured his foot in June and decided since he could not afford any further medical treatment to return to work because he had no other income.

Claimant returned to work at Heimburger Construction Inc. He was still taking Norco pain medication prescribed by the doctors. The injury to his right foot and ankle affected the claimant's balance, strength and stamina when he returned to work. He continued to have a burning pain in his ankle. He described it as feeling like walking on a rock. He also had limited movement in his ankle. He had difficulty standing on it and could not squat.

The employer was understanding of his limitations and allowed him to modify his work. Because he could not walk out on the steel beams as he could before the injury he was allowed to work out of a raised basket. Purlins are the steel beams set on rafters that form